Court: Parents who consent to guardianship retain some rights

LITTLE ROCK — A parent who voluntarily gives up a child to a guardian does not surrender his or her fundamental interest in raising that child, the state Supreme Court ruled Thursday.

LITTLE ROCK — A parent who voluntarily gives up a child to a guardian does not surrender his or her fundamental interest in raising that child, the state Supreme Court ruled Thursday.

The court issued the ruling in an appeal by Tamera Troeskyn of Minnesota, who in November 2008 consented to permanent guardianship of her daughter, then age 3, by the girl’s paternal grandparents, Donna and Larry Herrington of Stuttgart.

In June 2010, Troeskyn filed a petition to terminate the guardianship of her daughter. She said she had agreed to the guardianship because her life was unstable at the time, but now she was ready to care for her daughter.

The Herringtons fought the petition and asked an Arkansas County circuit judge to order psychological evaluations of all interested parties.

Troeskyn objected to being evaluated, arguing that the Herringtons had not shown good cause. The judge ordered the evaluations, and a doctor who examined Troeskyn later testified that he found nothing to suggest should could not be a fit parent.

The circuit judge denied Troeskyn’s petition in July 2011, finding that she had not met the burden of proof that the guardianship was on longer necessary.

Troeskyn argued on appeal that the burden of proof should not have been on her but on the parties opposing her petition, because a parent has a fundamental interest in raising his or her child.

She argued that the state law the judge relied on, as applied in her case, violated her constitutional right of due process. The law states that a guardianship may be terminated if it is no longer necessary or if termination is in the child’s best interest and makes no mention of the rights due to parents.

The Supreme Court on Thursday reversed the circuit judge’s ruling and sent the case back to circuit court for reconsideration of Troeskyn’s petition.

In a 4-3 opinion, the court said Arkansas Code 28-65-401 as applied in Troeskyn’s case violated her constitutional rights because her parental status was given no weight in the judge’s decision.

“Parents who have not been found unfit do not relinquish their fundamental liberty interest in raising their children by consenting to a guardianship,” and therefore they are entitled to a presumption that they are acting in the child’s best interest, Justice Jim Gunter wrote in the court’s opinion.

The parent does bear the responsibility of putting forth evidence that the guardianship is no longer necessary, however, the court said.

The high court also said it was reversing the lower court because the judge granted the Herringtons’ motion for psychological evaluations even though Troeskyn’s mental condition was not in controversy.

Writing for the minority, Justice Courtney Goodson said she concurred in the decision to overturn the circuit judge’s ruling but dissented from the majority’s finding that Troeskyn had a responsibility to put forth some evidence. Goodson said the ruling was unclear as to what the standard of proof should be and said that in her view the entire burden of proof should have been on the Herringtons.

Justices Donald Corbin and Robert Brown joined in the minority opinion.